Wednesday, November 30, 2016

The U.S. Supreme Court ruled that double jeopardy
doesn’t bar the partial retrial of a corporate president and a Puerto Rican
senator when a jury delivered inconsistent verdicts, but the counts on which
they were convicted were vacated because of incorrect jury instructions, reported the ABA Journal.

The unanimous decision (PDF)
by Justice Ruth Bader Ginsburg in Bravo-Fernandez v. United States allows retrial on the federal-program bribery
count for which the two defendants were originally convicted.

The corporate president, Juan Bravo-Fernandez, had been
accused of financing a Las Vegas trip for then Puerto Rican senator Hector
Martinez-Maldonado. Though jurors convicted the men on the bribery count, they
acquitted them on counts of conspiring and traveling to commit the bribery.

Defense lawyers had
argued retrial on the overturned bribery count was barred because the
jury necessarily found that the defendants didn’t violate the bribery statute
when it acquitted them on the related charges of traveling and conspiring to
commit the bribery.

But the Supreme Court said retrial was allowed because the
bribery conviction was vacated for a reason unrelated to the inconsistent
verdicts. The general rule of allowing a new trial to rectify trial error
applies, Ginsburg wrote.

“Because we do not know what the jury would have concluded
had there been no instructional error,” Ginsburg wrote, “new trial on the
counts of conviction is in order.”

Tuesday, November 29, 2016

No one has a good estimate of the number of US prison
inmates who have suffered traumatic brain injuries, reported Vice. The Centers for Disease
Control estimates the portion of the male incarcerated
population with these kinds of problems somewhere in their past at a
frustrating 25 to 87 percent. It is clear that the percentage is far higher
than the roughly 8.5 percent of the general population that reports traumatic
brain injury.

The proliferation of head trauma adds another mental health
challenge to America's mess of a prison system. Depression and anxiety,
substance abuse, violence and suicidal thoughts are all associated with head
injuries. Cognitive impairment can also make prison life—rife with rules, jobs
and social norms—more difficult, and the culture shock and byzantine
prohibitions imposed by parole practically unbearable.

For these reasons, the Pennsylvania Commission on
Crime and Delinquency awarded the Brain Injury Association of Pennsylvania a
$250,000 grant to screen for head trauma among men on track to be paroled from SCI Graterford, the idea being to smooth their transition back into the outside
world. The prison, with more than 3,000 inmates, is about 35 miles from Philadelphia and
releases men into the five counties around the city. The program is one of a few around the country aimed at tailoring reentry to
the unique needs of a traditionally brain injury-prone population as some
states and localities (and for now, at least) the federal government scale back
incarceration.

What is known that head injuries often lead to more head
injuries. After an initial one, a person is three times
more likely to experience a second. After a second, he or she is eight
times more likely to suffer a third.

Monday, November 28, 2016

On the campaign trail, President-elect Donald Trump called
himself "the law and order candidate,' pledging to crack down on crime
from the Oval Office.

But now, a coalition of conservative heavyweights are urging
him – and Sen.
Jeff Sessions, his nominee for attorney general – to make criminal justice
reform "a top priority for your first 100 days in office," reported US News.

"We share your goal of enhancing public safety and
encourage you to consider that, just as with energy policy, it requires an
all-of-the-above strategy," a letter addressed to Trump from conservative
members of the U.S. Justice Action Network states. Just as dangerous criminals
must be incarcerated, for "addicts and those with mental illness,"
society's interests "can best be advanced through treatment-based
approaches."

Timothy Head, executive director of the Faith and Freedom Coalition
and a signatory to the letter, says his organization senses an opportunity to
advance criminal justice reform with the incoming administration – particularly
if Sessions, a conservative senator, is confirmed to lead Trump's Justice
Department.

Sunday, November 27, 2016

In 2002, the Supreme Court ruled that
executing someone with an intellectual disability is a “cruel and unusual
punishment,” prohibited by the Eighth
Amendment.

Psychologists typically diagnose intellectual disability
with tests of a person’s IQ and “adaptive behavior,” meaning the interpersonal
and practical skills needed for everyday life. The tests examine a broad range
of abilities, including whether the person can clothe and feed themselves,
handle money, read and write, and whether they are gullible and easily led. But
in Moore’s case, the state of Texas instead relied in part on a stereotype
based — literally — on a tragic character from John Steinbeck’s Of Mice
and Men, wrote Peter Aldhous at Buzzfeed.com.

In 2004, when ruling on
the case of José García Briseño, convicted of murdering a sheriff, the Texas
Court of Criminal Appeals took inspiration from a character in Of Mice and
Men: Lennie Small, a lumbering migrant worker who understands neither the world
around him nor his own strength, and ends up killing a woman who flirts with
him.

“Most Texas citizens might agree that Steinbeck’s Lennie
should, by virtue of his lack of reasoning ability and adaptive skills, be
exempt,” Judge Cathy Cochran wrote in her opinion. But she questioned whether
the scientific definitions of “mental retardation” should apply to the death
penalty.

Calling the measurement of adaptive behavior “exceedingly
subjective,” Cochran proposed seven questions, now called the “Briseño
factors,” to help judge whether a convicted killer has the intellectual
capacity to justify facing the death penalty. She did not specify exactly how
they should be used.

In 2014, in an opinion written by Justice Anthony Kennedy,
the court ruled that
Florida was
wrong to use a rigid cutoff of 70 IQ points or less. Today’s IQ tests,
which are set so that 100 points is the average score, have a measurement
error of three points or more. This means that any score should be
considered as a range, not an absolute value. After that court decision,
Florida reduced the
sentence of convicted killer Freddie Lee Hall,
who had scored 71 on one IQ test, from death to life in prison.

Now, the U.S. Supreme Court will hear the case of Booby
James Moore, asking the justices to consider once again how to define
intellectual disability.

In April 1980, 20-year-old Moore and two other men attempted
to rob the Birdsall Super Market in Houston. Moore carried a shotgun, and one
of his accomplices had a pistol. As an accomplice opened a bag to fill with
money, Moore, wearing a wig and sunglasses, pointed his gun at two store
clerks. When one of the clerks shouted, Moore shot the other in the head,
killing him instantly.

Moore has been on death row for 36 years. His guilt is not
in question, but his lawyers say he does not have the mental capacity to
justify executing him for his crime.

Saturday, November 26, 2016

Just in the nick of time, President-elect Donald Trump may
be the savior that a beleaguered private prison industry was longing for. With
prison reform in many states focusing on reducing prison population, and in
turn prison costs, the private prison industry was taking a hit.

Recent years have not been kind to the private prison
industry, culminating in a Federal Office of Inspector General report that
revealed serious safety and human rights concerns with private prisons. The
Inspector General found, compared with government-run facilities, that private
prisons had a higher rate of assaults, security incidents, solitary
confinement, and gaps in medical care.

As a result of the report, the Barack Obama Administration
announced it would close its private prisons. The Department of Homeland
Security, which uses private prisons for immigration detention facilities,
indicated the same.

A prime example is Texas, where the private prison boon came
crashing down in recent years. As the public sector’s need for private prison
beds had diminished, the tally of failing prisons in Texas increased.

The bust is most evident in rural Texas, where more than a
dozen once-profitable facilities have failed. At least seven of them, which
together borrowed nearly $200 million, are in arrears on bond payments,
according to figures from Municipal Market Analytics, a bond-research firm,
reported the San Antonio Express-News.

In Polk, Newton, Dickens, Jones, Palo Pinto, Limestone,
Lamb, Dallas, Jefferson and Burnet counties, former private prisons are either
empty, losing money or are being converted to other uses.

A major source of the decline in prison population has been
immigration enforcement. In 2000, the U.S. Border Patrol apprehended 1.67
million people; by 2014 the figure had dropped to fewer than 487,000, and has
remained low, reported the Times News.

A Trump Administration is poised to change immigration
enforcement in a big way and with it the fortunes of the private prison
industry.

The president-elect pledged during a recent “60 Minutes”
interview that he would prioritize the removal of “probably two million, it
could be even three million” criminal aliens. The removal process will require
mass incarceration and private prisons will be the answer.

Private prisons are out to make a profit. That profit is
made on the backs of taxpayers. They have no incentive, like government run
prisons, to explore alternatives to incarceration, such as electronic
monitoring, half-way houses or other diversionary efforts to reduce the number
offenders behind bars. The Texas-based criminal justice blog Grits for
Breakfast once revealed a portion of CoreCivic’s annual 10-K report filed with
the U.S. Securities and Exchange Commission. CoreCivic acknowledged that the
company is “dependent upon the governmental agencies with which we have
contracts to provide inmates for our managed facilities. We cannot control
occupancy levels at our managed facilities ... a decrease in our occupancy
rates could cause a decrease in revenues and profitability.” The report continues,
“The demand for our facilities and services could be adversely affected by …
leniency in conviction or parole standards and sentencing practices.” CoreCivic
did not ignore the threat of leniency or a reduction in occupancy. According
the Chattanoogan, citing a report from the National Institute on Money in State
Politics, CoreCivic hired hundreds of lobbyists and spent many millions of
dollars on lobbying in an effort to orchestrate a private prison resurgence.

That money and effort has paid-off. The private prison
industry has weathered the storm, and four years of President Trump promises to
enrich the industry beyond its most optimistic expectations.

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently
released by McFarland Publishing. You can reach him atmattmangino.com and
follow him on Twitter at @MatthewTMangino.

Friday, November 25, 2016

The Catholic Church in Rwanda apologized for the
Church’s role in the 1994 genocide, saying it regretted the actions of those
who participated in the massacres, reported the Catholic Herald.

“We apologise for all the wrongs the Church committed. We
apologise on behalf of all Christians for all forms of wrongs we committed. We
regret that Church members violated their oath of allegiance to God’s
commandments,” said the statement by the Conference of Catholic Bishops, which
was read out in parishes across the country.

The statement acknowledged that Church members planned,
aided and executed the genocide, in which more than 800,000 ethnic Tutsis and
moderate Hutus were killed by Hutu extremists.

Wednesday, November 23, 2016

In a ruling establishing that financial gain and not merely
"intangible political gain" is a requirement for a conviction under
the state's conflict of interest statute, the Pennsylvania Supreme Court has
vacated the sentence of former Beaver County State Representative Michael Veon convicted in connection
with using public money to rent space for his ­legislative offices, writes Max Mitchell of The Legal Intelligencer..

A divided Supreme Court vacated the entire judgment of
sentence against Veon and remanded the case for a
for a new trial. The decision reversed a ruling from the Superior Court, which
had upheld the sentence.

The opinion, written by Justice David N. Wecht, said that
the trial court had erred when it said the statute defining conflict of
interest can be violated even if the only benefit to the defendant was
political in nature. Wecht added that, since nothing in the rest of the jury
instructions fixed that error, Veon's entire sentence had to be vacated.

"The trial court's jury instruction here made of the
statute a meat axe, finding (or creating) a conflict of interest on every dais,
at each parade, and at every ribbon-cutting, given that the very nature of
seeking to satisfy one's constituents and secure re-election all but requires
the taking of official action to secure ­intangible political gains,"
Wecht said. "This criminalization of politics is a bridge too far."

Pittsburgh attorney Joel Sansone, who represented Veon, said
the ruling was a "total vindication."

"Mike has said all along that he never took a penny,
and in any of these prosecutions there hasn't been any proof that he's taken
any money ever," Sansone said. "Mike was a servant of the people. He
never did anything for his own personal gain."

Tuesday, November 22, 2016

Two former aviators whose sons were killed by police, propose an interesting idea on investigating police involved shootings at Constitution.com.

Here is an excerpt:

In aviation, an independent team of National Transportation
Safety Board (NTSB) experts diligently gathers evidence after an accident,
analyzes data and facts, and issues nonbinding recommendations designed to
prevent similar incidents from reoccurring. As a result of . . . taxiway
accident[s], the NTSB recommended new protocols be established to improve
pilot-controller communications and signage along taxi routes. They even
suggested introducing unambiguous terms such as “back taxi” into radio transmissions,
to ensure aviators have a better mind-picture of the airfield environment.

In law enforcement, there is no centralized “external
learning system” that gathers data and analyzes the facts associated with a
deadly incident, then issues preventive safety recommendations.

Consequently, Americans are dying at an ever-increasing rate
through encounters with police. In 2015, at least 1,209 people were killed by
police officers. As of early November, 992 people have died this year
(killedbypolice.net). According to PoliceOne.com,
it is estimated that roughly 25% of officer-involved shootings concern
mistake-of-fact scenarios . . . Indeed, the authors’ sons
were killed by frightened, amped-up police officers who made deadly mistakes.
Those senseless tragedies drove us to become vocal advocates for systemic
improvements in how police-involved deaths are investigated. Hopefully, these
will prevent future senseless shootings.

Monday, November 21, 2016

The botched execution of Clayton Lockett in Oklahoma
disturbed witnesses and stirred the nation: A convicted murderer, deemed
unconscious, began twitching and convulsing on the gurney, only able to raise
his head.

After 43 minutes of apparent anguish, the man died of a
heart attack. Lockett’s bungled execution led Oklahoma to reconsider its
lethal-injection protocols, and spurred Lockett’s brother to file suit —
alleging torture and human medical experimentation, among other claims.

In a recent decision, a federal appeals court upheld
the 2015 decision to dismiss the lawsuit, ruling that the lethal-injection
process did not qualify as cruel and inhumane, reported the Washington Post. What took place during the
execution, a three-judge panel of the U.S. Court of Appeals for the 10th
Circuit held, was
a sort of “’innocent misadventure’” or “’isolated mishap.’”

The judges acknowledged that Lockett suffered during the
procedure. But citing previous Supreme Court death-penalty opinions, Judge
Gregory A. Phillips, writing for the court, stated that simply “’because an
execution method may result in pain, either by accident or as an inescapable
consequence of death, does not establish the sort of objectively intolerable
risk of harm that qualifies as cruel and unusual.’”

Sunday, November 20, 2016

More than 300 of the more than 1,900 people who have been
exonerated in the U.S. since 1989 pleaded guilty, according to an estimate by
the National Registry of Exonerations, reported The Associated Press. The registry is maintained by the
University of Michigan Law School using public information, such as court
documents and news articles.

Last year, 68 out of 157 exonerations were cases in which
the defendant pleaded guilty, more than any previous year.

Critics say the numbers reflect an overwhelmed criminal
justice system with public defenders who have more cases than they can handle
and expedience on the part of court officials, who can save the government
money with plea bargains compared with costly trials.

"Our criminal justice system has lost its way,"
said David O. Markus, a prominent Miami defense attorney. "For a long
time, it was our country's crown jewel, built on the principle that it was
better that 10 guilty go free than one innocent be wrongfully convicted. Now
sadly, the system accepts and even encourages innocent people to plead
guilty."

In the 1970s and 1980s, state and federal lawmakers reacted
to rising crime rates by imposing mandatory minimums and other sentencing laws
to crack down on felons. As the penalties and risk of going to prison grew, so
did the percentage of defendants who opted to plead guilty.

Last year, more than 97 percent of criminal defendants
sentenced in federal court pleaded guilty compared with about 85 percent more
than 30 years ago, according to data collected by the Administrative Office of
the U.S. Courts. The increase in guilty pleas has been a gradual rise over the
last three decades.

No entity gathers statistics for all state courts, but
prosecutors, defense attorneys and law professors say they have also seen more
cases at that level resolved by guilty pleas and fewer cases going to trial.

Saturday, November 19, 2016

On Nov. 14, a new law went into effect in Pennsylvania
allowing people convicted of certain misdemeanors to request the courts seal
their records so they are only available to law enforcement, and not the
general public.

Sounds like a good idea — a government initiative to help
people get back into the workforce.

The following day, I walked into a Pennsylvania courthouse
to file a motion to expunge a client’s criminal record. I learned, much to the
chagrin of my client, the filing fee for an expungement increased from $54.50
to $132. The state on the one hand authorized the sealing of criminal records
and on the other hand increased the cost of expungement by 250 percent.

While Pennsylvania cranked up the cost to clean-up a
criminal record, most states, including Pennsylvania, have, and continue, to
pile-on, when it comes to fines and court costs.

In 2010, the Brennan Center for Justice issued a report on
Florida’s reliance on fees to fund its courts.

Since 1996, Florida added more than 20 new categories of
financial obligations for criminal defendants and, at the same time, eliminated
most exemptions for those who cannot pay. The process of cranking up fees to
pay for courts has become known as “cash register justice.”

In fact, some states apply “poverty penalties,” such as late
fees, payment plan fees and interests, when people are unable to pay all their
debts in a lump sum, reported CBS News Moneywatch. Alabama charges a 30 percent
collection fee, for instance, while Florida allows private debt collectors to
add a 40 percent surcharge on the original debt. In North Carolina, people are
charged for using a public defender, so indigent defendants who cannot afford
an attorney are forced to face jail time without counsel.

Attorney General Loretta E. Lynch recently urged leaders in
the legal profession to overhaul court fees, fines and a money bail system that
can lead to a cycle of debt, incarceration and poverty for those who cannot
afford to pay, reported the Washington Post.

“When we begin to treat defendants as cash registers, rather
than citizens, we do more damage to the fabric of our institutions,” Lynch told
the Post. “We stain the sanctity of our laws. And we only tighten the shackles
of those struggling to break the chains of poverty.”

Even some of the ideas to alleviate the burden raise some
real concerns. Rather than jail for some who cannot pay fines, why not allow
them to “work off” the debt? Under this system, an unemployed person works at a
nonprofit or government agency in exchange for debt relief, not compensation.

So what’s the problem, asks the Los Angeles Times. The
crucial point is that incarceration remains the consequence for not working to
the court’s satisfaction. That puts tremendous pressure on workers. And when
“pay or jail” becomes “work or jail,” that choice arguably violates the
Constitution’s Thirteenth Amendment, which abolished slavery and involuntary
servitude.

During the early years of the 20th Century, Alabama
selectively prosecuted and convicted African Americans for minor crimes,
imposed fines they could not afford and threatened to throw them in jail if
they did not pay. The judge then offered a way out. A private employer would
cover the fine if the defendant agreed to repay the employer through labor. If
the worker later dared to quit, he could be prosecuted and convicted again,
reported the Times.

In 1914, the United States Supreme Court struck down
Alabama’s practice that kept a defendant “chained to an ever-turning wheel of
servitude to discharge the obligation.”

Will Congress or state legislatures intervene to ease the
burden on former offenders and their families, or will the courts have to do as
was done more than a century ago, and right the wrongs of overzealous
lawmakers?

— Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently
released by McFarland Publishing. You can reach him at mattmangino.com and
follow him on Twitter at @MatthewTMangino.

Thursday, November 17, 2016

A man condemned to death for the strangulation murder of his
ex-girlfriend in 2001 was executed by the state of Georgia on November 16, 2016, after
spurning any additional efforts for an appeal or 11th-hour reprieve, reported Reuters.

Steven Spears, 54, was put to death by lethal injection at
the Georgia Diagnostic and Classification Prison in Jackson, about 50 miles (80
km) south of Atlanta. He was pronounced dead at 7:30 p.m., state Attorney
General Chris Carr said in a statement.

Spears was the 18th person executed this year in the United
States and the eighth in Georgia, the most of any state, according to the
nonprofit Death Penalty Information Center.

On Wednesday, Georgia's pardons and paroles board denied a
final request for clemency made on his behalf.

A psychologist and psychiatrist who evaluated Spears on
Tuesday at the request of prosecutors and defense lawyers said he told them he
did not want to die but wished to forgo any further bids to spare his life
because he was tired of prison.

"I don't want to live like I'm living," Spears
told Dr. Matthew Norman during an interview, according to a report filed with
the courts. "It's like a cancer eating me up every day."

Both experts said they found Spears mentally competent.

Spears told police he killed Sherri Holland, 34, at her home
in Lumpkin County because he suspected she was dating someone else, according
to court records.

He said he hid in her son's bedroom until the early hours of
Aug. 25, 2001, and then attacked Holland, binding her hands and feet with duct
tape before strangling her.

"Last thing she said was she loved me," Spears
told police after the killing. "Swear to God, that's the last thing she
said. Last words came out of her mouth."

Spears, who was arrested after hiding out in the woods for
10 days, showed no remorse for the killing at the time and was quoted as
telling authorities: "If I had to do it again, I’d do it," according
to the court synopsis.

He was convicted and sentenced to death in 2007. The Georgia
Supreme Court affirmed the death sentence in 2015 after an automatic appeal.

Special interest organizations — most of which don’t have to
disclose their donors under campaign finance laws — put a record $19.4 million
into TV ads for judicial candidates, over half of all TV spending in these
races. The Republican State Leadership Committee spent the most of any group,
putting $4 million into eight different races as part of its stated effort to elect more
conservative justices.

The spending largely failed to unseat the judges it
targeted. In Kansas, Washington and Mississippi, for example, justices held
onto their jobs despite costly efforts to remove them.

Tuesday, November 15, 2016

Opposing Unrestricted Concealed Carrying of Weapons by Anyone, Anywhere, Does Not Equate to Opposing the Second Amendment

A number of Montana Sheriffs are seeking sensible
restrictions on concealed carry, as reported in the Missoulian. The Montana Constitution provides:

"Article II. Declaration of Rights. Section 12. Right
to bear arms. The right of any person to keep or bear arms in defense of his
own home, person, and property, or in aid of the civil power when thereto
legally summoned, shall not be called in question, but nothing herein contained
shall be held to permit the carrying of concealed weapons."

A person in Montana may carry a concealed firearm while they
are hunting, fishing, hiking, ranching, or on their own property, and the list
continues. However, when they enter a city or town, a permit from the county
sheriff is required to carry a concealed firearm. Montana’s current laws strike
an equitable balance between citizens exercising their Second Amendment rights
with as few limitations as possible while also protecting public safety.

A concealed weapon permit entitles a person to carry a
concealed weapon, skip the background check when purchasing a firearm, and
carry concealed in states with which Montana has reciprocity. According to the
Montana Department of Justice, a Montana concealed weapon permit is also valid
in 43 other states.

While we, as a group, do not support or endorse any
political candidate, we do wish to set the record straight. Sheriffs support
the existing permit requirements for concealed weapon permits, as a matter of
public safety. Opposing unrestricted concealed carrying of weapons by anyone,
anywhere, does not equate to opposing the Second Amendment.

Monday, November 14, 2016

The Alabama Department of Corrections has offered to kill an
inmate facing an execution next month with the drug protocol he requested, one
never before used in an execution, provided the man consents to it, reported Buzzfeed.com.

Alabama’s current lethal injection protocol calls for three
drugs to be administered. The first is midazolam: A controversial sedative used
in several botched executions. The second is a drug that paralyzes the inmate.
And the third is a drug that stops the heart; it is undisputed that the drug
causes severe pain to a conscious person.

Death row inmates in Alabama have argued that the risk of
pain is too high to use the third drug, and offered up a few different ways
they could be killed. If death row inmates want to challenge their method of
execution, the Supreme Court has said they have to propose better alternatives.

One of the options they proposed is to use a single dose of
midazolam, the controversial sedative, and no other drugs. In previous executions
throughout the United States, midazolam has always been paired with other
execution drugs.

U.S. District Court Judge Keith Watkins ordered the state to
produce a one-drug execution protocol with only midazolam by early next week. The inmate, will have to decide within 48 hours whether he will consent
to that execution or possibly face the three-drug protocol.

Sunday, November 13, 2016

Judge Jed S. Rakoff writes in the New York Review of Books
how limited access to the courts has eroded faith in the American justice system. He focuses on both civil and criminal courts
and here is an excerpt on criminal trials:

While US citizens
thus no longer have much real access to their courts in many civil and
regulatory matters, you might think they would still have meaningful access in
criminal cases, which are beyond the jurisdiction of any administrative court,
let alone private arbitrators. But in reality, the real decisions in criminal
cases are made by the prosecutors, not the courts. This is because, as a result
of draconian and often mandatory penalties imposed by both Congress and most
state legislatures during the last decades of the twentieth century, it is much
too risky for any defendant, even an innocent one, to go to trial.

Instead, over 97 percent of those charged in federal
criminal cases negotiate plea bargains with the prosecution, and in the states
collectively the figure is only slightly less, about 95 percent. In
most cases, as a practical matter (and sometimes as a legally binding matter as
well), the terms of the plea bargain also determine the sentence to be imposed,
so there is nothing left for either a judge or a jury to decide. While the
immediate result is the so-called mass incarceration in the United States that
has rightly become a source of shame for our country, the effect can also be
seen as just one more example of the denial of meaningful access to the courts
even in the dire circumstances of a criminal case.

Saturday, November 12, 2016

On November 14, 2016, new amendments to Pennsylvania law
will go into effect, reported the Philadelphia Inquirer. The changes to Act 5 will allow people with certain types
of misdemeanors to ask the courts to seal their records so that they are
available only to law enforcement, and not to the general public.

The changes come with an increase in filing fees, up from
under $20 to about $145 per petition.

Next week, lawmakers, advocates, and local and state
officials will gather in Harrisburg to talk about the next iteration on
criminal records: the Clean Slate bill.

That measure would automatically erase arrests without
convictions and certain offenses from a person's criminal record after a period
of time with no need for an expensive court petition. Police will still have
access.

You may be eligible if all of the following apply:

1. You were convicted (plead guilty or were found guilty) of
an offense that was a misdemeanor of the 2nd or 3rd degree.

Friday, November 11, 2016

In 1974, President Gerald Ford, the only person ever to
assume the presidency without getting elected president or vice-president,
pardoned his predecessor Richard Nixon. Nixon had resigned in the shadow of the
Watergate investigation making way for Ford.

Some speculate that Ford’s pardon of Nixon cost him the
chance at getting elected president in 1976, when he lost to Georgia Governor
Jimmy Carter.

As Hillary Clinton faces the prospect of renewed
investigations into her email accounts, the Clinton Foundation and the pledge
by her opponent President-elect Donald Trump to put her in jail, President
Barack Obama has a decision to make. Does he pardon Hillary Clinton?

He has no concerns with re-election. His career, at least as
head of the executive branch of government, is over. His presidential legacy is
on the line, but if Trump is true to his word, most of Obama’s achievements as
president are soon to be dismantled.

After Election Day, White House press secretary Josh Earnest
left open the possibility that President Obama could grant a pardon to Clinton,
though he said the president was hopeful President-elect Trump would follow
long-standing tradition of not punishing political opponents through the
criminal justice system.

“For Obama to do that (pardon Clinton) at a moment at which
he is the least accountable politically, that would be a little tricky,” Brian
C. Kalt, law professor at Michigan State University told the Washington Times.
“That said, it would be perfectly constitutional. It’s just the question of
whether it’s good politics or not.”

Rudy Giuliani, a leading contender to be Trump’s attorney
general told Bloomberg News the U.S. has two traditions that are in conflict
with each other. One, he said, is that “we try to get over the anger and
everything else about an election after it’s over with and put it behind us.”

“I don’t like to see America become a country in which we
prosecute people, you know, about politics,” he said. “On the other hand, there
are deep and disturbing issues there ... “

Giuliani went on to say, “That’s a very tough balance and
that’s why I don’t think President Obama should pardon her, I think President
Obama should leave it to the system we all believe in to determine, is she
innocent or is she guilty?”

The pardon power “is unlimited and unreviewable,” former
House counsel Stan Brand told Politico. Brand said he doubts Trump will follow
through on his threats of a special prosecutor. “If he wants to be president,
he’s the president-elect now, he truly has to switch from campaign mode to
governing mode,” Brand added. “I’d say good luck to them politically, if
(Trump’s team) thinks that’s (prosecuting Clinton) going to advance their
agenda.”

Trump has a real dilemma of his own making. His campaign
rhetoric included a familiar refrain, “Crooked Hillary.” His supporters
frequently chanted “Lock her up.”

Trump issued his pledge to appoint a special prosecutor to
investigate Clinton during a national debate with the whole country watching.
During one exchange, Clinton said she was glad that someone with “the
temperament of Donald Trump is not in charge of the law in our country.” Trump
replied, “Because you’d be in jail.”

The idea of jailing Clinton was the cornerstone of Trump’s
campaign, his supporters relished in the idea of prosecuting Clinton. According
to the Los Angeles Times, “They (Trump supporters) have produced merchandise
including T-shirts and bobblehead dolls emblazoned with ‘Hillary for Prison’ or
Clinton wearing pinstripes or jail jumpsuits.”

There is hope that cooler heads may prevail. New Jersey
Governor Chris Christie, the head of Trump’s transition team, seemed to back
away from the threat of investigating Clinton. “They had an enormously gracious
conversation with each other on Tuesday night,” Christie told the “Today Show.”
Christie added, “Politics are over now. People have spoken. Time to move to
uniting the country.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently
released by McFarland Publishing. You can reach him atmattmangino.com and
follow him on Twitter at @MatthewTMangino.

Thursday, November 10, 2016

Sen. Tom
Cotton (R-Ark.) said that President-elect Donald Trump is ready to
make “tough calls” if it comes to waterboarding terrorism suspects, reported The Hill.

“If experienced intelligence professionals come to the
president of the United States and say, 'We think this terrorist has critical
information and we need to obtain it and this is the only way we can obtain
it,' that’s a tough call,” Cotton said on CNN's “The Situation
Room.”

“But the presidency is a tough job, and if you’re not ready
to make those tough calls then you shouldn’t seek the office. Donald Trump’s a
pretty tough guy, and I think he’s ready to make those tough calls.”

Trump said during the campaign he would bring back
waterboarding and a “hell of a lot worse” to interrogate suspected terrorists.

Waterboarding is banned by international law and has been
banned by U.S. law under an annual defense policy bill that includes a
provision barring brutal interrogation techniques widely classified as torture.

Wednesday, November 9, 2016

You can hold off on those stories about the demise of
capital punishment in America, at least as far as public opinion goes, reported The Marshall Project. Voters
in three states, two
reds and a blue, decisively endorsed capital punishment in a series of
ballot initiatives decided late Tuesday into Wednesday.

In California, voters appear
to have rejected a measure that would have repealed the death penalty
and at the same time by a smaller margin endorsed a measure whose sponsors
contend will expedite executions in the Golden State. The
results, a crushing blow to capital abolitionists in the state and around
the country, nevertheless guarantees years of additional litigation over the
new procedures designed to empty the nation’s largest death row.

In Nebraska, voters decisively
turned on their own legislators and restored the death penalty.
Lawmakers repealed capital punishment in 2015, citing its costs among other
factors, but Gov. Pete Ricketts led an expensive campaign to bring back
executions. His message clearly
resonated in a state that has
10 death row inmates who have been in limbo for the past 18 months.
The “repeal the repeal” movement won by margins as large as 4-1 in some
counties outside of Lincoln and Omaha, reported the World-Herald.

Finally, in Oklahoma, a
state with a chaotic recent history of executions, voters overwhelming
shored up their state’s death penalty by amending the constitution to
confirm that capital punishment is not “cruel and unusual punishment” under the
Eighth Amendment and to give legislators the power to change the methods of
execution if one is declared unconstitutional.

Monday, November 7, 2016

FBI Director James Comey has reversed course on reversing
course on his ill advised Jury disclosure of no charges against Hillary Clinton
and her emails. His latest position
change came after reviewing newly discovered Clinton emails, his agency again
determined that the Democratic presidential candidate should face no criminal
charges for her email practices, reports the Washington Post. The
announcement cleared a distraction that had dogged the final days of Clinton’s
campaign. Comey notified key members of Congress of the finding, writing
that investigators had worked “around the clock” to review all the emails found
on a device used by former Rep. Anthony Weiner that had been sent to or from
Clinton and determined that the emails did not change “our conclusions
expressed in July.”
Even as Comey removed the pending FBI investigation from the last 48 hours of
the campaign, the central role the agency has played in the political process
for months could cause lingering trouble for the FBI and Comey, who must work
with whoever is elected president on Tuesday. Investigators reviewing the
material found that the emails were either duplicates of correspondence they
had reviewed earlier or personal e-mails that did not pertain to State
Department busines

Roberts was accused of planning her ex-husband’s murder with
a boyfriend in hopes of collecting insurance money.

Previously, she successfully argued to the high court that
the trial judge should have considered her history of depression and other
factors in her sentence. She was ordered to be re-sentenced.

The boyfriend, Nathaniel Jackson, also was sentenced to
death for fatally shooting Roberts’ ex-husband in 2001 at a home in Howland, in
Trumbull County. The Supreme Court upheld
Jackson’s sentence in August.

Sunday, November 6, 2016

What could FBI director James Comey learn from the medical
profession? Do no harm. Doctors take the Hippocratic Oath which includes, “Also
I will, according to my ability and judgment, prescribe a regimen for the
health of the sick; but I will utterly reject harm and mischief.”

As the top law enforcement officer in the country, Comey has
recklessly caused harm and mischief in the midst of the most important endeavor
any country can undertake — the election of a national leader.

Comey’s conduct this past summer and again last week was
contrary to the directives of the Justice Department, the FBI and clearly
beyond what most elected or appointed lawmen would do in the midst of a
contentious and bitter election.

As Charles Kaiser wrote for CNN.com, “His (Comey’s) gratuitous disclosure of the
discovery of new emails (which may or may not have anything to do with Hillary
Clinton) has done more to politicize the bureau than anything done by any other
FBI director since (J. Edgar) Hoover died in office in 1972.”

Comey’s problems started in July when he took the
unprecedented action to publicly disclose that an investigation into Clinton’s
emails as Secretary of State did not rise to the level of a prosecutorial
offense. The FBI usually holds press conferences to talk about charges being
filed, one would have to look long and hard to find a news conference by the
director of the FBI saying charges would not be filed.

Then last week, Comey took the unusual step of informing
Congress — through a vague letter — that the Clinton email investigation was
back on. He justified this baffling and inappropriate letter, less than two
weeks from Election Day, on the basis that he had previously testified to
Congress that the matter was “completed.”

Comey was justifying his latest disregard for Justice
Department policy by invoking his previous disregard for Justice Department
policy. He was advised in July and again last week by Attorney General Loretta
Lynch and other high ranking Justice officials that his announcement could run
afoul of department policy.

CNN’s Kaiser wrote that former Justice Department spokesman
Matt Miller said Comey’s decision to ignore the advice of leadership at Justice
was stunning.

“I think he has a lot of regard for his own integrity,”
Miller told the Washington Post. “And he lets that regard cross lines into
self-righteousness. He has come to believe that his own ethics are so superior
to anyone else’s that his judgment can replace existing rules and regulations.
That is a dangerous belief for an FBI director to have.”

Jack Goldsmith, a Harvard Law School professor and Assistant
Attorney General in the George W. Bush Administration and Benjamin Wittes wrote
in Time Magazine that Comey should have at least said the following after his
unsolicited “October surprise:”

To say that something has to be reviewed does not mean it
contains anything implicating anyone of anything. It means only that the
material has to be reviewed.

Nobody should draw any conclusions about anyone’s conduct
based on the fact that the FBI is reviewing these emails.

Nobody should draw the conclusion that anyone sent or
received additional classified material or that any material undermines the
FBI’s prior investigative conclusions based on the fact that the FBI is
reviewing these emails.

Comey has said nothing. Election Day is four days away — the
harm that has been done goes beyond this election and to the reputation of the
FBI and the growing distrust of the American system of justice.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently
released by McFarland Publishing. You can reach him at mattmangino.com and
follow him on Twitter at @MatthewTMangino.

Saturday, November 5, 2016

In an era of prominent Republican support for reducing
incarceration attack ads can spark backlash, according to The Marshall Project. Last month, the
Republican National Committee ran an ad explaining that
when Democratic vice-presidential candidate Tim Kaine was a defense lawyer, he
represented men who received the death penalty. As Virginia governor, the ad
goes on, Kaine commuted a death sentence. Kaine “consistently protected the
worst kinds of people,” the ad says.

The condemnation was swift. Kevin Burke, a former president
of the American Judges Association, defended Kaine
as a modern-day Atticus Finch and pointed out that the ranks of former death
penalty defense lawyers include none other than U.S. Supreme Court Chief
Justice John Roberts. Amid the criticism, the RNC deleted its own
tweet, which had characterized the ad as “Willie-Horton style.”

Racial politics have shifted over time, too. The Horton ad
was widely perceived as playing on racial anxieties, a perception that the new
ads seem keen to avoid. “Most of these spots flinch when it comes to going for
a pure fear appeal, à la Willie Horton,” says Robert Mann, a journalism
professor at Louisiana State University who wrote a book
on the 1964 “Daisy” ad. Mann noted that an attack ad
about Democratic Connecticut state Sen. Mae Flexer — which criticizes her vote
to repeal the state’s death penalty and support an early release program — “was
careful to show several non-minority faces.” The attack on Kaine also features
primarily white criminals.

This year, many ads in the Horton tradition focus on the
subject of rape, perhaps in an attempt to appeal to women voters. In Houston,
Texas, an adaccuses
the incumbent district attorney, Republican Devon Anderson, of jailing a rape victim
to ensure she would testify. Republican ads againstNorth Carolina
gubernatorial candidate Roy Cooper and Catherine Cortez Masto,
who is running for a Senate seat from Nevada, accuse each of them of putting a
low priority on testing rape kits and solving rape crimes in general.

Friday, November 4, 2016

The U.S. Supreme Court stayed the execution of Thomas D. Arthur who had been scheduled to die in Alabama by lethal injection, reported the Washington Post.

This marked the seventh time that Arthur —
who was convicted of murder and is the second-oldest inmate on
Alabama’s death row — had faced an execution date that was called off,
according to the office of Alabama Attorney General Luther Strange.

Arthur’s execution was scheduled for Thursday evening,
but the uncertainty stretched into the night as officials in Alabama waited for
the Supreme Court to consider his appeals.

Supreme Court Justice Clarence Thomas — the Supreme
Court justice assigned to the 11th Circuit, which includes Alabama — said
in an order shortly before 10:30 p.m. that he was halting the execution
until he or the other justices issued another order.

Thomas referred the case to the full court, and shortly
before midnight, the justices issued an order granting Arthur’s stay
request. The order included a statement from Chief Justice John G. Roberts
Jr. explaining that while he did not believe this case merited a
review from the Supreme Court, he had decided to vote for a stay
anyway as a courtesy to his colleagues.

Thursday, November 3, 2016

Alabama Death Row inmate Tommy Arthur on is set to die by lethal injection at 6 p.m. on
today.

This is the seventh time Arthur's execution has been scheduled. Six other times, within days or hours
of the appointed time, his execution was stopped. And other than a month on the
lam after shooting a jailer in a 1986 escape, the second oldest inmate on death
row has spent the better part of his last 33 years in a small cell on death
row.

Arthur denies he was paid to kill a sleeping Muscle Shoals
man, Troy Wicker, in 1982.

"I didn't no more kill Troy Wicker than you did,"
Arthur told AL.com in a recent telephone interview from his cell.

Three different juries in trials in 1983, 1987 and 1991,
however, thought otherwise and found him guilty. The victim's wife, Judy
Wicker, was also convicted of the murder and spent a decade in prison. She
testified at one trial she paid Arthur $10,000 of the insurance money for the
killing. Judy Wicker and Arthur, who was on work release at the time, were in a
romantic relationship, court records show.

Wednesday, November 2, 2016

Right from the start, there were signs something was wrong
with the “Broken Window Theory” credited for much of the dramatic violent crime
decline in New York City, reported NPR.

Criminologists George L. Kelling and James Q. Wilson wrote an article forThe Atlantic where they introduced their crime fighting strategy known as the Broken Window Theory adopted by NYC Major Rudy Guiliani in 1993.

"Crime was starting to go down in New York prior to the
Giuliani election and prior to the implementation of broken windows
policing," says Bernard Harcourt a Columbia University law professor.
"And of course what we witnessed from that period, basically from about
1991, was that the crime in the country starts going down, and it's a remarkable
drop in violent crime in this country. Now, what's so remarkable about it is
how widespread it was."

Harcourt points out that crime dropped not only in New York,
but in many other cities where nothing like broken windows policing was in
place. In fact, crime even fell in parts of the country where police
departments were mired in corruption scandals and largely viewed as
dysfunctional, such as Los Angeles.

"Los Angeles is really interesting because Los Angeles
was wracked with terrible policing problems during the whole time, and crime
drops as much in Los Angeles as it does in New York," says Harcourt.

There were lots of theories to explain the nationwide
decline in crime. Some said it was the growing economy or the end of the crack
cocaine epidemic. Some criminologists credited harsher sentencing guidelines.

In 2006, Harcourt found the evidence supporting the broken
windows theory might be flawed. He reviewed the study Kelling had conducted in
2001, and found the areas that saw the largest number of misdemeanor arrests
also had the biggest drops in violent crime.

Harcourt says the earlier study failed to consider what's
called a "reversion to the mean."

"It's something that a lot of investment bankers and
investors know about because it's well-known and in the stock market,"
says Harcourt. "Basically, the idea is if something goes up a lot, it
tends to go down a lot."

A graph in Kelling's 2001 paper is revealing. It shows the
crime rate falling dramatically in the early 1990s. But this small view gives
us a selective picture. Right before this decline came a spike in crime. And if
you go further back, you see a series of spikes and declines. And each time,
the bigger a spike, the bigger the decline that follows, as crime reverts to
the mean.

Kelling acknowledges that broken windows may not have had a
dramatic effect on crime. But he thinks it still has value.

"Even if broken windows did not have a substantial
impact on crime, order is an end in itself in a cosmopolitan, diverse
world," he says. "Strangers have to feel comfortable moving through
communities for those communities to thrive. Order is an end in itself, and it
doesn't need the justification of serious crime."

Order might be an end in itself, but it's worth noting that
this was not the premise on which the broken windows theory was sold. It was
advertised as an innovative way to control violent crime, not just a way to get
panhandlers and prostitutes off the streets.

Harcourt says there was another big problem with broken
windows.

"We immediately saw a sharp increase in complaints of
police misconduct. Starting in 1993, what you're going to see is a tremendous
amount of disorder that erupts as a result of broken windows policing, with
complaints skyrocketing, with settlements of police misconduct cases skyrocketing,
and of course with incidents, brutal incidents, all of a sudden happening at a
faster and faster clip."

The problem intensified with a new practice that grew out of
broken windows. It was called "stop and frisk," and was embraced in
New York City after Mayor Michael Bloomberg won election in 2001.

If broken windows meant arresting people for misdemeanors in
hopes of preventing more serious crimes, "stop and frisk" said, why
even wait for the misdemeanor? Why not go ahead and stop, question and search anyone
who looked suspicious?

There were high-profile cases where misdemeanor arrests or
stopping and questioning did lead to information that helped solve much more
serious crimes, even homicides. But there were many more cases where police
stops turned up nothing. In 2008, police made nearly 250,000 stops in New York
for what they called furtive movements. Only one-fifteenth of 1 percent of
those turned up a gun.

For George Kelling, this was not the end that he had hoped
for. As a researcher, he's one of the few whose ideas have left the academy and
spread like wildfire.

But once politicians and the media fell in love with his
idea, they took it to places that he never intended and could not control.

"When, during the 1990s, I would occasionally read in a
newspaper something like a new chief comes in and says, 'I'm going to implement
broken windows tomorrow,' I would listen to that with dismay because [it's] a
highly discretionary activity by police that needs extensive training, formal guidelines,
constant monitoring and oversight. So do I worry about the implementation about
broken windows? A whole lot ... because it can be done very badly."

In fact, Kelling says, it might be time to move away from
the idea.

"It's to the point now where I wonder if we should back
away from the metaphor of broken windows. We didn't know how powerful it was
going to be. It simplified, it was easy to communicate, a lot of people got it
as a result of the metaphor. It was attractive for a long time. But as you
know, metaphors can wear out and become stale."

These days, the consensus among social scientists is that
broken windows likely did have modest effects on crime. But few believe it
caused the 60 or 70 percent decline in violent crime for which it was once
credited.

Tuesday, November 1, 2016

Whether the loser of an election sees fit to embrace defeat and
publicly concede is mostly immaterial.

"It doesn't have any independent legal effect," Rick Hasen, a University of California-Irvine professor who runs the
popular Election Law Blog told CNN. "If he concedes or he doesn't concede, the
votes totals will be what they will be."

Recounts are triggered automatically in 20 states and the
District of Columbia when the margin of victory is sufficiently narrow, according
to different laws in each of those states. The parameters vary -- in Florida
and Pennsylvania, it's a margin of 0.5% or less of the total vote, while
Michigan requires a deficit of 2,000 votes or less.

According to CNN, the most notable recount in recent times, after the 2000
presidential vote in Florida, began not -- as the Donald Trump campaign has suggested
-- at the behest of a litigious and sour Al Gore, but in accordance with the
state's predetermined rules for sorting such a narrow vote.

In all, 43 states "permit a losing candidate, a voter,
a group of voters or other concerned parties to petition for a recount,"
according to the National Conference of State Legislatures. But at least a
few require the loser to meet some benchmark, like in Idaho where requests are
only heard if the margin is less than 0.1%.

Ultimately, the identity of the new president will be certified by the House and Senate, where electoral
votes are traditionally delivered in early January, and formally signed off on
by the President of the Senate -- in this case, Vice President Joe Biden. Gore,
like Richard Nixon four decades earlier, literally sealed his own fate.

So Trump's statement that "I'll keep you in suspense" is really no suspense at all--whether or not he accepts the outcome will be of little consequence.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.